Post navigation

An FOI opportunity missed?

The Minister of Justice, Jack Straw, has disclosed in an audit report that 954 convicted criminals who had been released on licence from prison and then recalled, are still at large. The Daily Mail, in its article on the story, reported that the Durham and Surrey police forces cited the Data Protection Act 1998 as their reason for not being able to name criminals in their area who are at large.

We suspect that the Mail’s journalists must have contacted the police forces quoted in the story by telephone, which may explain the citing of the Data Protection Act 1998 (“DPA”) to decline the requested disclosure. However, there is an argument that the prevention and detection of crime exemption at s.29 of the DPA could have been used to allow the disclosure, had the Durham and Surrey forces been so minded.

If the constabularies had been asked for the criminals’ details in writing, these would have been a freedom of information requests under the Freedom of Information Act 2000 (“FOIA”)(see s.8(1)). It would have been interesting to see their reasoned explanation for their refusals (as required under s.17 of FOIA).

The personal information exemption that a constabulary could have cited to deny the Mail the details (s.40 of the FOIA) is notoriously difficult to understand and apply. However, it is arguable that none of the absolute exemptions from disclosure under s.40 apply, as none of the data protection principles would have been breached by a disclosure. Instead, only the public interest test of the qualified exemption in s.40 would have applied.

It’s an interesting question: is the public interest better served by having these criminals’ details in the public domain rather than by preserving their data protection rights (and arguably their safety and public order) by having their details retained? Given that some other forces have published this information, it would appear the public interest may lie in disclosure.

Perhaps the Mail should pursue its story, using a written request under FOIA for these criminals’ names?